PORTUGAL

Get in contact or get a price estimation from our partner in Portugal Get in contact
Due to the COVID-19 pandemic, certain merger control processes may be affected. We suggest to contact our local partners for more information.
Content last updated: 19-03-2020

Choose the type of information you seek

  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Supranationality

1.1 Membership of Supranational Organization

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Yes, Portugal is a member of the European Union.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

The EU Merger Regulation is based on a "one-stop-shop" principle. This implies that if a concentration between undertakings has an “EU dimension”, i.e. the concentration meets the turnover thresholds in Article 1 of the EU Merger Regulation, the concentration shall be notified only to the European Commission.

Consequently, the Portuguese Competition Authority will as a general rule be precluded from reviewing the transaction, subject to referral of the transaction from the European Commission to the Portuguese Competition Authority.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory if the thresholds described in Section 2.3.1 under the Merger Screening Schedule below are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Transactions shall be notified to the Portuguese Competition Authority prior to the implementation/completion and following the conclusion of the agreement, the announcement of a public bid, or the acquisition of controlling interest.

A notification may also be submitted where the notifying parties to the transaction demonstrate a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make a bid, provided that the intended agreement or bid would result in a notifiable transaction to the Portuguese Competition Authority.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

A concentration between undertakings is understood to exist when a change of control in the whole or parts of one or more undertakings occurs on a lasting basis, as a result of:

a) The merger of two or more previously independent undertakings or parts of undertakings;

b) The acquisition, directly or indirectly, of control of the whole or parts of the share capital or parts of the assets of one or various other undertakings, by one or more persons or by one or more undertakings already controlling at least one undertaking.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration between undertakings.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

Control results from any act, irrespective of the form it takes, implying the possibility of exercising a decisive influence over the activity of an undertaking on a lasting basis, whether solely or jointly, and taking into account the elements of fact and of law, specifically:

a) The acquisition of the whole or the majority of the share capital; 

b) The acquisition of ownership rights, or rights to use the whole or a part of the assets of an undertaking;

c) The acquisition of rights or the signing of contracts which confer a decisive influence on the composition, voting or decisions of the undertaking’s corporate bodies.

A concentration between undertakings is understood to exist when a change of control in the whole or parts of one or more undertakings occurs on a lasting basis, as a result of:

a) The merger of two or more previously independent undertakings or parts of undertakings;

b) The acquisition, directly or indirectly, of control of the whole or parts of the share capital or parts of the assets of one or various other undertakings, by one or more persons or by one or more undertakings already controlling at least one undertaking.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Acquisitions of minority or other interests that do not lead to an acquisition of control do not fall within the Portuguese merger control rules and will not be considered by the Portuguese Competition Authority.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

In a merger, the "undertakings concerned" are each of the merging entities.

In an acquisition of control, the undertakings concerned may vary depending on the characteristics of the transaction:

In case of acquisition of sole control, the undertakings concerned are the acquiring undertaking consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) and the target undertaking (i.e. not including the seller).

In case of acquisition of joint control of a newly created joint venture, the undertakings concerned are each of the undertakings jointly acquiring control. The same applies where one undertaking contributes a pre-existing subsidiary or a business (over which it exercises sole control) to a newly created joint venture.

In case of acquisition of joint control over a pre-existing undertaking or business, the undertakings concerned are each of the undertakings acquiring joint control, and the pre-existing acquired undertaking.

 In case of entry of a new shareholder in a pre-existing joint venture, which leads to a change in the quality of control for the remaining controlling shareholders, the undertakings concerned are the newly entering controlling shareholder alongside with the remaining controlling shareholders.

In case where a pre-existing, full-function joint venture acquires control over another undertaking, the undertakings concerned are the joint venture (i.e. not including the parent companies) and the target undertaking. Where a joint venture is mere acquisition vehicle, the undertakings concerned are in such situation the parent companies to the joint venture and the target undertaking.

In case of change from joint control to sole control, the undertakings concerned are the undertaking acquiring the sole control and the joint venture. The other "existing" shareholder (i.e. the seller) is not considered an undertaking concerned.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Whichever date is earlier of the date of conclusion of the binding legal agreement; the announcement of a public bid or the acquisition of a controlling interest or the date of the first notification to the competition authority.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Merger Control filing is required when:

  • As a consequence of the concentration, a market share equal to or greater than 50% of the domestic market in a specific product or service, or in a substantial part of it, is acquired, created or reinforced; or
  • As a consequence of the concentration, a market share equal to or greater than 30% but smaller than 50% of the domestic market in a specific product or service, or in a substantial part of it, is acquired, created or reinforced, and the turnover in Portugal of each of at least two of the undertakings concerned is greater than EUR 5,000,000 in the previous financial year; or
  • The combined turnover in Portugal of the undertakings concerned exceeds EUR 100,000,000 in the previous financial year and the turnover in Portugal of each of at least two of the undertakings concerned is above EUR 5,000,000.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

The first threshold can be triggered without reference to the local turnover of the undertakings. The criteria is only the market share.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

The first threshold can be triggered without reference to the local turnover of the undertakings. The criteria is only the market share.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Transactions falling below the above thresholds may not be investigated by the Portuguese Competition Authority.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are not sector-specific or other ex ante merger control rules.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Transactions meeting the above thresholds have to be notified to the Portuguese Competition Authority, regardless of whether the undertakings concerned are domiciled outside of Portugal.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the net turnover related to the sale of goods and/or services in the ordinary course of business exclusive of (i) rebates; (ii) value added tax and other taxes directly related to the turnover; and (iii) group internal sales.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Guidance to the calculation of turnover can be found in the European Commission's Consolidated Jurisdictional Notice under Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings ("the Jurisdictional notice").

The Jurisdictional notice can be found on:

http://ec.europa.eu/competition/mergers/legislation/draft_jn.html

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover figures should be based on the latest financial year for which audited annual accounts exist.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the "undertakings concerned" in Section 2.1.1 above. In short, the undertakings whose turnover is taken into account comprises the entire group that the acquirer belongs to and the target's group (i.e. target and any of its wholly or jointly-owned subsidiaries).

Turnover should be calculated as follows:

a) Turnover of the undertakings concerned in the concentration;

b) Turnover of the undertaking in which the acquirer has, directly or indirectly: i) a majority shareholding; ii) more than half of the voting rights; iii) the possibility of appointing more than half of the members of the board of directors or the supervisory board; iv) the power to manage its businesses;

c) Turnover of the undertakings that have, in the undertakings concerned, in isolation or as a whole, the rights or powers detailed in subparagraph b);

d) Turnover of the undertakings in which any of the undertakings referred to in paragraph c) may have the rights or powers detailed in subparagraph b);

e) Turnover of the undertakings where various undertakings referred to in subparagraphs a) to d) hold together, between themselves or with third-party undertakings, the rights and powers detailed in subparagraph b).

Where one or various undertakings involved in the concentration hold together, between themselves or with third parties, the rights and powers detailed in subparagraph b) of the previous paragraph, in the calculation of the turnover of each undertaking concerned in the concentration:

a) No account shall be taken of the turnover resulting from the sale of products or the provision of services between the joint undertaking and each of the undertakings concerned or any other undertaking connected to any of them pursuant to subparagraphs b) to e) of the previous paragraph;

b) Account shall be taken of the turnover resulting from the sale of products or the provision of services between the joint undertaking and any other third-party undertaking, which shall be apportioned equally amongst all the undertakings concerned that control the joint undertaking.

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall not be included in the target's group turnover.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

State-owned undertakings, state-owned business undertakings and undertakings to which the state has granted special or exclusive rights are covered by the merger control regime. However, those undertakings that have been legally entrusted with the management of services of general economic interest, or are by their nature legal monopolies, are subject to the provisions of Portuguese competition law to the extent only that enforcement of competition law does not create an obstacle to the fulfilment of their specific purpose, either in law or in fact.

3.7.2 Does any exemptions apply?

A concentration of undertakings shall not be deemed to arise as a result of:

a) The acquisition of shareholdings or assets in receivership by an insolvency administrator;

b) The acquisition of shareholdings merely to serve as collateral;

c) The acquisition by credit institutions, financial institutions or insurance companies of shareholdings in undertakings with different purposes from that of these three types of undertakings is acceptable, held on a temporary basis and acquired with a view to reselling the shareholdings, provided they are not to be held on a lasting basis and provided the institutions do not exercise voting rights in respect of such shareholdings with a view to determining the competitive behavior of those undertakings or provided they exercise such voting rights only with a view to preparing the disposal of the whole or part of that undertaking or of its assets or the disposal of such shareholdings and that any such disposal takes place within one year of the date of acquisition, and that period may be extended by the Portuguese Competition Authority if such institutions can show that disposal was not reasonably possible within the time limit set.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

Notification of a concentration shall be made to the Portuguese Competition Authority:

a) Together by all the parties involved in the merger, in the creation of a joint venture or in the acquisition of joint control over the whole or part of one or more undertakings;

b) Individually by the party that is acquiring exclusive control of the whole or part of one or more undertakings.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, a transaction meeting the above thresholds has to be notified to the Portuguese Competition Authority prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Notification may be made where the undertakings concerned demonstrate to the Portuguese Competition Authority a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced an intention to make such a bid, provided that the intended agreement or bid would result in a notifiable transaction.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

Merger notifications are subject to payment of a fee (Article 94 of Law No. 19/2012 of 8 May) established by Regulation No. 1 / E / 2003, published in the DR - II Series, of 25 July.

In the case of a decision to pass the in-depth investigation, it is mandatory to pay an additional fee as established in the aforementioned Regulation.

The basic rate to be charged for the assessment of mergers subject to notification:

a) EUR 7,500, where the turnover in Portugal in the last financial year by all the undertakings participating in the concentration, is less than or equal to EUR 150,000,000;

b) EUR 15,000, when the turnover in Portugal in the last financial year by all the undertakings participating in the concentration, is higher than EUR 150,000,000 and less than or equal to EUR 300,000,000;

c) EUR 25,000, when the turnover in Portugal in the last financial year by all the undertakings participating in the concentration, was higher than EUR 300,000,000.

1.4.2 When must the filing fee must be paid?

The filing fee must be paid from the date of submission of the notification, by bank transfer, and the corresponding confirmation must be sent to the Portuguese Competition Authority on the day of payment.

The notification shall become effective on the date it has been submitted to the Portuguese Competition Authority along with the proof of payment of the fee.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The Portuguese Competition Authority publishes a non-confidential notice of the fact that it has received a notification, inviting third parties to comment on the proposed transaction.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The Portuguese Competition Authority shall, within a time limit of five working days, counting from the day when the notification becomes effective, provide for the publication of the key elements of the concentration in two of the daily papers with a large nationwide circulation, at the expense of the notifying party, setting a time limit of not less than 10 working days for submitting observations.

The Portuguese Competition Authority will abstain from commenting on active cases in the media.

1.5.3 Will third parties be able to review the notification?

Third parties cannot review the notification but holders of subjective rights or legally protected interests who may be affected by the concentration and who submit observations to the Portuguese Competition Authority wherein they state their express and substantiated opinion on the implementation of the concentration are entitled to intervene in the proceedings. 

The failure to submit observations within the time limit stipulated extinguishes the right to intervene in the hearing unless the Portuguese Competition Authority considers that such participation is relevant for the proceedings and does not preclude the adoption of an express decision within the time limit that is legally set.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

The Portuguese Competition Authority allows transactions to be notified pursuant to a simplified procedure, if the concentration, in a preliminary assessment, does not pose significant impediments to competition and the undertakings concerned are not operating in the same or related markets, or if they have only very small market shares not reaching specific market share thresholds. 

For example, in case of existence of a horizontal overlap:

- joint market share does not exceed 15%; or

- joint market share between 15% and 25%. 

The same applies in the case of vertical relationships provided that individual or joint market share does not exceed 25%.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

After the presentation of the Regular Form or the Simplified Form the procedures are similar but, depending on the complexity of the case, it can have on or two phases.

See below: 2.3.1

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Undertakings in a presumably notifiable concentration can be notified voluntarily to the Competition Authority prior to the obligation of notification.

Such pre-notification is an instrument for companies to strengthen contacts with the Portuguese Competition Authority.

As an optional procedure for undertakings, this gives them the opportunity to discuss the contours of such operations at a pre-notification stage in an informal and confidential manner, and, as far as possible, gives them the opportunity to discuss the main substantive issues and/or procedural requirements that could otherwise be raised during the formal post-notification review.

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Phase I - 30 working days

Portuguese Competition Authority shall conclude proceedings within 30 working days from the date that the notification becomes effective.

Portuguese Competition Authority may authorize the introduction of substantial changes to the notification that has been submitted, following a well-substantiated request from the notifying party, in which case the time limit of 30 working days shall be adjusted so as to count anew from the date when the changes were received.

Phase II - 90 working days

Within a maximum time limit of 90 days from the date when the notification becomes effective, the Portuguese Competition Authority shall undertake the complementary actions deemed necessary for the investigation. This time limit can be extended by the Portuguese Competition Authority upon request from the notifying party(ies) or, with its consent, up to a maximum of 20 working days.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

Where at any time during the proceedings more information or documentation is required, or what has been provided has to be rectified, the Portuguese Competition Authority shall inform the notifying party, setting a reasonable time limit for providing the elements at issue or for making the necessary rectifications. This communication shall suspend the time limit with effect from the first working day following dispatch and expiring on the day the Portuguese Competition Authority receives the elements requested.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Throughout the proceedings, the Portuguese Competition Authority may request from any other entities any information that it deems relevant for conclusion of the proceedings, which shall be provided within the time limits set by the Portuguese Competition Authority.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Portuguese Competition Authority has mandatory notification forms (Regular form and Simplified Form) which are annexed to Regulation Nº. 60/2013, published in the DR - II Series, dated February 14.

Please see:

http://www.concorrencia.pt/vPT/A_AdC/legislacao/Documents/Nacional/Regulamento_2013_60.pdf

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Not applicable.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

Portuguese.

3.4.2 Does translations have to be certified/legalized and apostilled?

Not applicable.

Statutory timetable

Step Description Time
1

Pre-notification

Undertakings in a presumably notifiable concentration can be notified voluntarily to the Competition Authority prior to the obligation of notification.

Such pre-notification is an instrument for companies to strengthen contacts with the Portuguese Competition Authority.

As an optional procedure for undertakings, this gives them the opportunity to discuss the contours of such operations at a pre-notification stage in an informal and confidential manner, and, as far as possible, gives them the opportunity to discuss the main substantive issues and/or procedural requirements that could otherwise be raised during the formal post-notification review.

Not defined.

Throughout the proceedings, the Portuguese Competition Authority may request from any other entities any information that it deems relevant for conclusion of the proceedings, which shall be provided within the time limits set by the Portuguese Competition Authority.

2

After the presentation of the Regular Form or the Simplified Form, the procedures are similar but, depending on the complexity of the case, it can have one or two phases.

Phase I

During the Phase I investigation, the Portuguese Competition Authority may authorize the introduction of substantial changes to the notification that has been submitted, following a well-substantiated request from the notifying party(ies).

30 working days from the date that the notification becomes effective.

In case the Portuguese Competition Authority authorizes the introduction of substantial changes to the notification the time limit shall be adjusted so as to count anew from the date when the changes were received.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Phase II

During the Phase II investigation, the Portuguese Competition Authority shall undertake the complementary actions deemed necessary for the investigation.

Maximum 90 days from the date when the notification becomes effective.

This time limit can be extended by the Portuguese Competition Authority upon request from the notifying party(ies) or, with its consent, up to a maximum of 20 working days.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 30 days
  • 90 days less the amount of days spent on Step 2 + extension

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 19-03-2020 by
Contact Person
António de Mendonça Raimundo
CONTACT DETAILS:

Albuquerque & Almeida has provided all input about merger control in Portugal.

AA have experience in the application of competition rules to wide-ranging sectors of the economy, as well as in regulated sectors.

Our highly skilled team have excellent academic qualifications as well as solid legal backgrounds, and professional experience, including a previous position at the Portuguese Competition Authority.

We contribute to the implementation and follow-up of competition compliance programmes and advise on Portuguese and European antitrust issues.

We assist our clients on a regular basis in all matters of competition law, in particular in the areas of merger control, horizontal and vertical agreements, and abuse of dominant position including the representation of companies and public entities in administrative procedures before the Competition Authority and the European Commission, as well as in litigation before the European and national courts.

We also advise our clients on individual restrictive trade practices.

The content for Merger Control in Portugal is co-authored by Partner António de Mendonça Raimundo and Principal Associate Sonia Gemas Donário who is responsible for the Competition & EU Department. For more information about Albuquerque & Almeida and merger control in Portugal, please contact our Partner directly.